Searching for Common Ground on Copyrights

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In the auditorium once reserved as a studio for Crossfire, CNN's now-defunct political smackdown showcase, a collection of scholars and copyright specialists gathered at George Washington University on Monday to explore legal issues too complex for a 10-second sound bite.

They were there to talk about copyright and its relation to colleges and universities, a combination that spans the traditional hornet's nest of disputes ranging from peer-to-peer file sharing to fair use in the classroom. In the process, the panelists managed to spar a bit but did come to a consensus on at least one point -- the level of uncertainty bred by the current legal status quo.

The forum, "Copyright and the University: An Academic Symposium", was sponsored by a new nonprofit advocacy group, Copyright Alliance, which promotes strong copyright protection for artists and describes itself as "dedicated to the value of copyright as an agent for creativity, jobs and growth." While the discussion often tended in that direction, the participants represented views divergent enough to sustain debates on how to define the rights of authors and how industries that are based on creative works should be structured.

Although the planned keynote speaker Rep. Ric Keller (R-Fla.) couldn't attend, the panelist Marybeth Peters, the United States Register of Copyrights, filled in to provide a broad overview of copyright law as it was originally intended and how it has evolved since. Noting that the Constitution gives Congress the power to secure "for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries," Peters said that the scope of authors' rights has expanded -- and with that expansion, the balance between artists' rights and promoting the "Progress of Science and useful Arts."

In 1966, when she began at the U.S. Copyright Office, the copyright law was 26 pages long. Today, the exceptions alone cover 70 pages. "I look at that [original] law with envy today," Peters said.

But even as the law has evolved, so have the expectations of consumers and the economic pressures on creators. When people can watch television or listen to the radio free, it can seem just as natural to desire free songs and movies for computers or portable players. "The expectation that an individual has from a work that they get or a device that they purchase is, 'I want everything and I want it when I want it,' " she said.

Another area of agreement in the two panels was the need for better education all around -- not only for students, but for librarians and professors as well. Speakers noted that universities were uniquely suited for this role but insisted that they tended not to live up to it. "For the most part, it’s very much finger wagging, it’s very much 'Here’s what’s going to happen to you if you transgress,' and you don’t get a lot of buy-in," said James Gibson, a visiting associate professor of law at the University of Virginia.

Gibson observed a lack of critical engagement with copyright issues at the university level and the result that students often don't understand the logic behind prohibitions on illegal file sharing. "I find that very much at odds with the university mission in general," he said, suggesting that better comprehension could lead to better compliance with the law.

That approach to the issue often stems from colleges' position in the crossfire, as it were, between the recording and motion picture industries on one hand, students on the other and the law peering down from above. The trouble, according to some of the panelists, is that it's not entirely clear where colleges' legal obligations begin.

Peter Jaszi, a professor at American University's Washington College of Law, said the issue of whether colleges can be held liable for students' actions using the campus network infrastructure is "not necessarily settled." He suggested (not without being challenged) that a court hearing of the issue -- with one unlucky college or university in the legal hot seat -- "would not necessarily be unhealthy" as a means to settle some of the blurry responsibilities currently being debated.

Whatever happens in the legal realm, however, students will continue to hold strong views on the availability of easy to access, free creative content. Warren Arbogast, a researcher at Illinois State University's Digital Citizen Project, offered some basic statistics "to help this part of the conversation to move from anecdote and supposition toward data."

"Students don’t think they’ll get caught," he said. "They will stop if they’re caught ... for a few days."

The discussion also touched on potential solutions, although the only agreement was to form a working group to tackle copyright reform wholesale. The economist Michael A. Einhorn, a director at CONSOR Intellectual Asset Management, contrasted digital copyright to the solutions forged in academic publishing, in which professors can pay license fees for individual chapters to combine into a course packet. "Licensing accommodates a modularity of content, a more open, more porous system where people can grab and buy as they choose," he noted.

Such clarity doesn't currently exist for digitally distributed music and movies. "Because the right has been improperly and vaguely defined, that is why we have the mess we have in file sharing now," he said.

The second panel also veered into fair use, touching on the double-edged sword of that vaguely defined but broader exception to copyright law. While scholars often feel the need to use it, doing so can invite legal scrutiny. So professors often act the same way as their students.

"That’s why the teachers shut the door," literally and figuratively, said Patricia Aufderheide, a professor at the American University School of Communication.